Britain, Breaking Up With E.U., Looks to an Expert: Henry VIII

Big Ben and the British Houses of Parliament on the River Thames in London on Wednesday. Britain has come up with a plan, first used by King Henry VIII in 1539, to legally reconcile laws on the day it leaves the European Union.Credit
Justin Tallis/Agence France-Presse — Getty Images

LONDON — When Henry VIII’s marital troubles got out of hand in the 16th century, they prompted a schism with the pope and Britain’s big break with the theological leadership of Continental Europe.

Now the Tudor monarch is influencing Britain’s modern-day divorce from the Continent, with powers that were first used by the king set to be deployed to help unpack four decades of European Union membership.

Among the many complications created by Britain’s decision to quit the European Union, known as “Brexit,” is the need to unscramble British and European laws, which have become intertwined.

On Thursday, the British government announced plans to avoid a legal quagmire by introducing the Great Repeal Bill, which was swiftly nicknamed the “Great Cut-and-Paste Bill.” The legislation would convert European Union laws, known as regulations, into British law, while preserving laws made in Britain that carry out European Union rules known as directives.

That means that the same laws should apply the day after Britain leaves the European Union, scheduled for 2019, as the day before — to provide legal continuity. But there are more than 12,000 regulations in force, and thousands more pieces of British legislation either incorporating, or influenced by, European law.

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Some will need only minor alteration, for example, removing references to European regulators. In doing so, the government plans to deploy so-called Henry VIII clauses that gained their name from the Statute of Proclamations in 1539, which gave the king power to legislate by proclamation. Proponents say it will enable the government to change the details of some European laws when they are imported into the British statute book.

The use of the mechanism is intended to speed the process, by avoiding full scrutiny of each law and directive by Parliament. But the plan has provoked protests and complaints that Parliament, which an exit from the bloc was supposed to strengthen, is being circumvented.

The dispute also highlights the vast scale of the task faced by the British government as it unscrambles a morass of European Union lawmaking.

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As many as 1,000 pieces of law will need to be changed by such secondary legislation, David Davis, the cabinet minister responsible for the exit, told Parliament on Thursday, though he added that those changes would only be technical and not involve matters of policy.

Not everyone is satisfied. Stephen Gethins, a member of Parliament from the Scottish National Party, said that the use of Henry VIII clauses would contradict claims by campaigners who sought to leave the bloc that exiting would bolster democracy.

“So much for parliamentary sovereignty,” said Mr. Gethins, adding that “Scotland’s aspirations for a voice also seem to be given the Henry VIII treatment,” because the Scottish government and Scottish Parliament are being sidelined over the exit.

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Mr. Davis defended the approach, saying that Mr. Gethins was highlighting the use of the Henry VIII clause because “he thinks that the public at large will think of some executive fiat dating from the Middle Ages.”

“Of course, what we are talking about here is the use of a procedure that has been used down the last centuries,” Mr. Davis said.

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Nevertheless, a document compiled by the library of the House of Commons acknowledged that “concerns over the constitutionality of Henry VIII powers have been growing in recent years, and their use in this legislation — which has the ostensible purpose of empowering Parliament, and which represents a major constitutional change — is likely to provoke extensive debate.”

Though the Great Repeal Bill is intended to deliver legal certainty, it might end up in the courts, thanks to Gina Miller, the woman whose legal battle forced the government to give British lawmakers a vote on whether to leave the bloc.

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“If the opposition didn’t stand up and ask questions, then I would seek legal advice to take the government back to court to find out if they can use these Henry VIII powers,” Ms. Miller, who received death threats over her earlier court challenge, told the BBC.